This is all your fault, Arnie!

A Connecticut lawyer under fire for commencing a lawyer-client relationship with a woman with whom he was romantically involved made the novel argument that it is good to be in love with your client.  This indicates a profound misunderstanding of human nature and the nature of a lawyer’s duties.

Almost ten years ago, the American Bar Association recommended that state bars include a direct prohibition against lawyers having sexual relations with their clients, and the majority of the states did so. As I have mentioned before, it’s a dumb rule, too broad and too narrow simultaneously, a classic example of how some kinds of unethical conduct do not lend themselves to precise rule-making.  The main problem with the no-sex rules is that they are unnecessary. The legal ethics rules are replete with exhortations to maintain objectivity, independent judgment and to avoid conflicts of interest. Common sense suggests that it is irresponsible to confuse one relationship by adding another; professional standards dictate that combining a professional relationship of independence and with romantic relationships is wrong.  As the D.C. Bar’s Rules of Professional Conduct point out in its comments to Rule 1.7, Conflicts of Interest:

“Especially when the client is an individual, the client’s dependence on the lawyer’s knowledge of the law is likely to make the relationship between lawyer and client unequal. A sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage. In addition, such a relationship presents a significant risk that the lawyer’s emotional involvement will impair the lawyer’s independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict the extent to which client confidences will be protected by the attorney-client privilege, because client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. The client’s own emotional involvement may make it impossible for the client to give informed consent to these risks.”

This comes from one of the jurisdictions that wisely avoided adopting a version of the ABA’s suggested prohibition. Among other virtues, regarding sexual relationships with clients as  obvious (and unwaivable) conflicts of interest avoids having to distribute a rule like Oregon’s 1.8, which includes a definition of what constitutes unethical sex:

(1) “sexual relations” means sexual intercourse or any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the lawyer for the purpose of arousing or gratifying the sexual desire of either party…”

Just in case Bill Clinton ever gets an Oregon bar license, I suppose.

The Connecticut lawyer, however, does not agree with the D.C. bar’s rational. Zenas Zelotes admits to having a romantic relationship with a divorce client before and during her case. He claims that, far from being damaging to the attorney-client relationship, being in love with his client made the attorney-client relationship better. Zelotes told the bar grievance committee:

“…when you are representing someone who you have love and affection for, you’re going to work twice as hard and there’s no question about it. It is not a detriment to the relationship. It’s probably the best darn thing you can do. My advice to a
woman going through a divorce is frnd a competent trial lawyer and make him your boyfriend.”

This is so, so wrong:

1. A lawyer is bound to do everything within reason permitted by the law and the ethics rules to achieve a client’s legitimate objectives, and the standard is the same whether the client is the lawyer’s best friend or his worst enemy. If Zelotes is twice as effective when he’s in love with his client, then he’s not adequately zealous when he isn’t. To say that he works harder for those he loves is virtually an admission of unprofessional conduct. If his logic was spun out to its  implications in the other direction, I would suggest that when a lawyer dislikes a client—and lawyers often do—that client  gets shafted. Not when the lawyer is a professional and ethical one, he doesn’t.

2. If, on the other hand, a lawyer meets his professional standards with the clients he’s not in love with, this would suggest that Zelotes would be excessively zealous with his lady love, therefore not serving her interests well.

3. Love is an emotion, and the catalyst of bias. Legal practice is based on skill and reason. Anger, fear, hate—these all are impediments to sound practice, and so is love. They interfere with dispassionate legal judgment. Sometimes it is a lawyer’s job to tell clients things that will make them unhappy. A lawyer whose judgment is skewed by love may avoid doing that part of the job. Sometimes a lawyer has to tell a client that what the client wants is improper, imprudent, or unethical. Love can interfere with that as well.

4. Meanwhile, the client presumably reciprocates the love of her lawyer. This creates the opportunity for undue influence by the lawyer.

5. And, of course, there is that little problem that arises when the romantic relationship ends before the legal one does. In most cases, this will hinder communication, interfere with the lawyer’s judgment, or require the termination of the representation.

The grievance committee found that while there was insufficient evidence that Zelotes and his client engaged in a sexual relationship during the representation, thus taking the matter out range of Connecticut’s “no sex with clients” rule, he was still in violation of Rule 1.7 (a) (2), which declares it an unwaivable conflict of interest for a lawyer to represent a client when “there is a significant risk that the representation …will be materially limited by … a personal interest of the lawyer.” Particularly since this was a divorce case, in which Zelotes presumably would feel he had a stake in the outcome, the committee found this unacceptable, noting that the lawyer…

“…does not appear to understand that his romantic interest in Terry Aliano would be a material limitation on his independent judgment and his legal advice to her regarding not just the litigation of her divorce action, but also issues concerning both her marital status and her position as a parent of minor children. If the litigation was “contentious,” it was almost certainly due in part to the Respondent’s own interest.”

The lesson?  Contrary to Zelotes’s advice, don’t make your lawyer your boyfriend, don’t make your boyfriend your lawyer,  and if you’re a lawyer, don’t try to simultaneously be a boy friend and her lawyer while your girl friend is going through a divorce.

[NOTE: In an earlier version of this post, I relied on a news source that suggested that Zelotes was found to be in violation of the Connecticut rule against commencing intimate relations with clients. This was not the case, and I have corrected the post with the assistance of the Grievance Committee ruling which was graciously sent to me by Mr. Zelotes. I regret the initial error, and am grateful for the assistance in correcting it.]